NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
________________
Nos. 10-3753 and 10-3854
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ROOFERS LOCAL NO. 30 COMBINED PENSION FUND;
BOARD OF TRUSTEES, ROOFERS LOCAL NO. 30 COMBINED
PENSION FUND; MICHAEL O'MALLEY, In His Fiduciary Capacity,
Appellants at No. 10-3753
v.
D.A. NOLT, INC.
_________________
ROOFERS LOCAL NO. 30 COMBINED PENSION FUND; BD TRUSTEES
ROOFERS LOCAL NO. 30 COMBINED PENSION FUND;
MICHAEL O'MALLEY, In His Fiduciary Capacity
v.
D.A. NOLT, INC.,
Appellant at No. 10-3854
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-09-cv-01445)
District Judge: The Honorable Robert F. Kelly
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Submitted Under Third Circuit LAR 34.1(a)
May 27, 2011
BEFORE: FUENTES, FISHER, and NYGAARD, Circuit Judges.

(Filed July 22, 2011)

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OPINION OF THE COURT
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NYGAARD, Circuit Judge.

Roofers Local 30 Combined Pension Fund (the Plan) appeals the District
Courts orders on cross-motions for summary judgment and a motion for reconsideration,
denying Roofers motions and affirming the arbitrators decision. The Plan asserts that
D.A. Nolt, Inc. has withdrawal liability.1 We will affirm.
The facts are not in dispute. We will recite them briefly to give the reader context.
After a multiemployer bargaining association completed negotiations for a collective
bargaining agreement with the Roofers Union for the years 2001-2009, Nolt exercised its
right to withdraw from the association, and it ceased making contributions to the unions
pension fund after the old agreement expired on April 30, 2001. In 2002, the Plan
determined that Nolt had a withdrawal liability of $58,226. The Plans actuary derived
this amount by first calculating approximately $2.7 million in unfunded vested benefit
liability as of December 31, 2000. In 2003, the Plans actuary reported mistakes in
calculating the value of unfunded vested benefit liability applicable to Nolt and he

Withdrawal liability is an amount owed to the Plan by an employer who ceases

participation in a multiemployer plan, pursuant to 29 U.S.C. 1381.
2

retroactively changed the valuation to approximately $12.8 million. As a result, in 2006,

the Plan recalculated Nolts withdrawal liability and demanded $370,327.2
Nolt issued a Request for Review, pursuant to 29 U.S.C. 1399(b)(2)(A), and
subsequently demanded arbitration. In a 64-page decision, the arbitrator determined that
the Plans revaluation of its unfunded vested benefit liability from the initial assessment
to the amount set forth in its 2006 demand letter was, in the context of this case, improper
under the Multiemployer Pension Plan Amendments Act of 1980. After clarifying that
all parties agreed to the inclusion of normal retirement benefits in calculating unfunded
vested benefit liability, the arbitrator also concluded that the Plans actuary had errantly
included the value of some early retirement benefits and death benefits in calculating
unfunded vested benefit liability. As a result, upon revaluation in accord with the
arbitrators decision, the Plan did not have any unfunded vested benefit liability as of
December 31, 2000, and Nolt did not owe any withdrawal liability. The District Court, in
a 37-page memorandum opinion, affirmed the decision of the arbitrator and enforced the
award. It denied the Plans motion to reconsider in an 8-page memorandum opinion.
On appeal, the Plan challenges the decision of the District Court, essentially
restating three issues raised before the District Court. First, the Plan disputes the
exclusion of some early retirement benefits and post-retirement survivor benefits from
the calculation of unfunded vested benefit liability. Specifically, it asserts that age and
death are not conditions for entitlement to benefits.

The Plan states that it was unable to demand withdrawal liability during the pendency of
its unfair labor practices dispute with Nolt, which concluded in 2005.
3

Next, the Plan argues that correcting the actuarys programming error, resulting in
a retroactive recalculation of withdrawal liability, is not only proper, but required.
Specifically, it claims that it is not estopped from correcting the error and that ERISA and
IRS rules require the correction.
Finally, the Plan maintains that it was improperly bound to its original calculation
of withdrawal liability. Specifically, the Plan asserts that it is not legally restricted to
assertions it made in its original demand letter. It also claims that its actuarys error is
not significant because the background and mechanics of the calculation are mostly not
disputed, and that its method for calculating the payment and schedule for repayment is
correct. Finally, the Plan argued that it is entitled to pre-demand interest, and that its
actuarial data and assumptions are correct.3
On cross appeal, Nolt maintains that the District Court erred by denying its motion
for attorneys fees because there was not any legitimate foundation supporting the Plans
effort to vacate the arbitration award. It asserts that the District Courts denial is at odds
with its findings of fact and conclusion at law.
In reviewing the District Courts summary judgment on the arbitrators award, we
presume, as did the District Court, that the arbitrator's factual findings are correct unless
3

The Plan also raised a new argument, focusing upon the date of withdrawal, to support
its recalculation of Nolts withdrawal liability and its claim for pre-demand interest. The
Plan argues that the legal date of withdrawal is in 2005, but the point of reference for
the calculation of demand liability is the inception of the labor dispute in 2001.
However, in response to other arguments raised by the Plan, the arbitrator determined,
and the District Court affirmed, that any question about Nolts date of withdrawal was
not appealable to him under the Multiemployer Pension Plan Amendments Act of 1980,
because the Plan, itself, had established the 2001 date of withdrawal in its 2006 demand
and Nolt did not appeal it.
4

they are rebutted by a clear preponderance of the evidence. Crown Cork & Seal Co.,
Inc. v. Central States Southeast and Southwest Areas Pension Fund, 982 F.2d 857,
860 (3d Cir. 1992). We review the arbitrator's legal conclusions de novo.4 Id. Finally,
we review a district courts denial of attorneys fees for abuse of discretion. Krueger
Associates, Inc. v. American Dist. Telegraph Co. of Pennsylvania, 247 F.3d 61, 69 (3d
Cir. 2001).
After conducting our own independent review of the record, we conclude that the
District Courts memorandum opinions on the cross motions for summary judgment and
the motion for reconsideration sufficiently analyze the relevant law and apply it correctly
to the facts. We can add little to the judge's thoughtful analysis or conclusions.
Accordingly, we will affirm the District Court's orders on the cross motions for summary
judgment and the motion for reconsideration substantially for the reasons set forth in the
memorandum opinions without further elaboration. With regard to Nolts cross-appeal of
the District Courts denial of attorneys fees, we do not find any abuse of discretion and
will affirm the order of the District Court.

Generally, the denial of a motion for reconsideration is reviewed for an abuse of

discretion. N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1203 (3d Cir.
1995). Where a district court's denial of a motion to reconsider is based upon the
interpretation of legal precepts, however, our review of the lower court's decision is
plenary. Id. [T]o the extent that the district court's order was based on a factual
conclusion, we review under a clearly erroneous' standard. Id.
5